County Claim Form- Help and advice is needed

RoseA1234

Hello, 

I am reading through the thread step by step but I just want to make sure I am following the process correctly and to get advice for the defendants county court defence. 

Issue date of claim is 20th March 2024

AOS was sent via email on 2nd April 2024. The money claim online service was not working something was wrong with the password so it was suggested to complete the AOS form and email it back which I did. 

 The claimant is Parkingeye

Court is civil nation business centre

Amount claimed: 197.96

Court fee: 35

Legal fee: 50

Total 282.96

 

Detail of claim. 

I am not the defendant, the claim is addressed to my dad but he was not the driver, my mum was. I am helping them to draft the defence because I don’t believe my mum was in the wrong. 

My mum stayed at the Travelodge for work from 21st March 2022 to 24th March 2022. Parking is free for hotel guests as long as you input your registration number in the device at reception. My mum states she did put her registration number in and there was never a problem during her stay. My only guess is she made a mistake when entering her registration number as she does wear glasses. 

 

She received a PCN back in June 2022 for her stay on 23rd March 2022. She appealed and sent them her hotel booking and they sent her the below email: 

 

Dear Sir / Madam, 

We are writing in relation to the Parking Charge incurred on 23 March 2022 at 11:56, at Harlow Exchange - Main car park. 

We would like to confirm that this charge has now been cancelled and there is no outstanding payment due. 

We understand that receiving a Parking Charge Notice may be inconvenient, however, issuing Parking Charges for breaches of the parking terms and conditions at this car park is necessary to ensure a better overall parking experience for all users of the facilities. 

To avoid potential future inconvenience, we would kindly request you follow the parking terms and conditions displayed on the signage throughout the car park. 

She is now confused and shocked to find a court claim for a PCN dating 22nd March 2022. She did not receive a PCN for this date and if she did she would have sent them the same hotel booking as she was still a guest of the hotel on that date. 

 How long do I have left before submitting a claim? 

 My next step is to complete the defence using the template. 

Fruitcake

If the defendant is your dad, then everything must be done in his name. Please confirm that the AoS was done in your dad's name. Did he receive confirmation that the AoS had been accepted. His MCOL history will show if this was successful.

The court is not the CNBC. That is a business centre, an office. The defendant will get to choose the court where they want the case heard later in the process.

You will not (should not) be submitting a claim. Your dad should be defending the claim. Part of that should include proof that the charge was cancelled.

Please show us a redacted image of the claim form showing the particulars of claim.

Plan A is still a complaint to the landowner and the defendant's MP, and should be done today. 

Use the guide to court written by bargepole from the sticky Announcement for NEWBIES in conjunction with the template defence sticky Announcement. Most of the defence is already for the defendant to modify.

nopcns

RoseA1234 said:

 How long do I have left before submitting a claim? 

 My next step is to complete the defence using the template. 

With a claim "Issue date" of 20th March and having submitted your AoS in a timely manner, you now have until 4pm Monday 22nd April to submit your defence.

Please show us the PoC of the claim in order to determine whether you can include the CEL v Chan preliminary matter.

From the detail you have given us, this does not sound as though ParkingEye are acting for themselves but rather they are using DCB Legal as their solicitors. Is this a correct assumption?

RoseA1234

Here is the claim form 


[Image removed by Forum Team]

RoseA1234

Yes even though he was not the driver, he is still the defendant so everything has been done in his name. 
The AOS was done in his name but it could not be done on MCOL, something was wrong with the password. Instead he completed the AOS form and emailed it. 

He received this automated email: 

Thank you for emailing the Acknowledgment of Services Team in the Civil National Business Centre.

Please expect a response to your enquiry in 10 days 

@nopcns, from the claim form it looks like they are using DCBL legal as their solicitors

Coupon-mad

Great - they'll discontinue with no hearing, later this year.  Your Dad can just use the hharry100 defence version that I link in the third paragraph of the Template Defence.

nopcns

As expected. Easy win. With those woeful PoC, you should use the CEL v Chan preliminary matter version of the template defence.

ParkingEye farm out any PCNs they think are weak. DCB Legal rely on low hanging fruit on the gullible tree to capitulate and pay up. However, you are now savvy and know how to defend this. I can put money on DCB Legal discontinuing this before it ever gets to a hearing as long as the advice in the Newbies/FAQ thread and the 12 point checklist in the Template Defence thread is followed.

Expect to see your username in lights on this thread in about 6 months from now:

DCB LEGAL RECORD OF PRIVATE PARKING COURT CLAIM DISCONTINUATIONS

RoseA1234

Here is the first draft defence, is it good to send ? 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.  

 

Transcript of chan judgement to go here

 

 

The facts known to the Defendant:

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but not the driver of the vehicle. 

 

 

5. The driver of the vehicle visited the hotel from 21st March 2022 to 24th March 2022. Guests of the hotel were instructed to park on the hotel car park and enter the registration number of the vehicle on the keypad system at reception. The driver of the vehicle entered the vehicle registration on 21st March, 22nd March, 23rd March and 24th March.  The driver of the vehicle received no feedback from the device that the registration entered was correctly or incorrectly entered. 

 

6. The Government's new statutory Code of Practice first published in February 2022 requires that all keying error cases be cancelled and if this was the case, this Claimant's should have identified any minor VRN digit(s) error, matched the exemption to the vehicle, and not issued a PCN at all.  It is appalling that the defendant is reduced to guessing what happened at this stage, when the Claimant already knows that there is no commercial or landowner justification to support proceeding.

Link here 

7. In addition to this, the driver of the vehicle received a PCN in June 2022 from the claimant, the PCN was only for the 23rd March 2022 at the same hotel. The PCN was successfully appealed and cancelled (email to be included as evidence)

 

 

 

8. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

9. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.


Exaggerated Claim and 'market failure' currently being addressed by UK Government

10. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

11. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

12. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

13. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: Link here

The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

 

14. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  link here

15. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

16. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

17. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

18. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

19. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

20. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

21. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

22. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

23. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

24. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

link here 

25. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

26.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

ParkingEye v Beavis is distinguished

27.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

28. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 

29.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

Lack of standing or landowner authority, and lack of ADR

30. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

31. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

32. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

33. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

34.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature:

Date:

 

1505grandad

A heads-up per first post of Defence Template thread:-

"On your thread, please don't put up paragraphs 4 to the end for critique if you have chosen to use all of the template example here. We don't need to see that, only the parts where you have made the defence your own, as you must, because it is your document to draft."

Coupon-mad

"The PCN was successfully appealed and cancelled (email to be included as evidence)"

No evidence goes yet.

RoseA1234

@Coupon-mad, thank you I will remove that part and just leave it as: 

In addition to this, the driver of the vehicle received a PCN in June 2022 from the claimant, the PCN was only for the 23rd March 2022 at the same hotel. The PCN was successfully appealed and cancelled. 

Is this all okay to send off now ?